Editor's Note: Christopher Tidball is a claimsconsultant, speaker and author of this article.

“What do you mean I'm at fault for the accident?” the irateclaimant asks.

“I didn't say you were entirely at fault, but you were partiallyat fault,” the adjuster replies.

“[Expletive], get your supervisor on the phone,” the claimantyells.

Within a matter of minutes, the adjuster's boss instructshim to pay the claimant the entire amount of the damages. “Hethreatened to get an attorney,” says the exasperatedsupervisor.

These are often the first few steps taken on the path of leastresistance in an industry where comparative negligence remains oneof the greatest obstacles to achieving accuracy inoutcomes. As an industry, an estimated 3 percent ofclaims are paid with a comparative negligenceassessment. Compare this to juries, where more than half ofall claims adjudicated have shared liability.

How is it that untrained jurors excel in an area where trainedadjusters flounder? The bigger question is what claimsorganizations can do to overcome this often ingrained behavior.

The key to success is to first recognize that there is aproblem. Perhaps your company excels in comparative negligenceassessment with shared liability routinely taken on intersectionaccidents, slip and falls, and liquor liability claims. Or, if youare like many in the industry, you spend hours pulling your hairout over the ubiquitous assessments of 100-percentliability. As an industry veteran, I was most certainly partof the latter.

The good news is that improvement is not only possible, butit is also highly probable when certain key steps aretaken. There are ten steps thatcan enable organizations to raise the bar and fosterbetter outcomes. Click on “Next“ at thebottom right of this page to view each of them.

1. Everything starts withmanagement. Organizational leaders must do more thansimply say “we need to improve comparative negligenceassessments.” That is somewhat akin to the owner of theJacksonville Jaguars saying we need to win more games. Peopleknow what needs to be done, but often lack the leadership, roadmapand tools to succeed.
2. Don't enable the path of least resistance. Ifmanagers routinely allow adjusters to take this path, then itbecomes culturally embedded in the organization. In theopening example, the adjuster became flustered and the supervisortook on the role of the appeaser. No harm, nofoul—right? Wrong. If a child throws atantrum every time he/she doesn't get his/her way,do you give in? No; you take the time toexplain your position and why he/she was in thewrong. By providing consistent and educational feedback, ourchildren become civil and responsible adults.
3. Educating our staff and customers is the key tosuccess. By their very nature,people don't like to be at fault. After all, we live in asociety where someone else is to blame. Just “AskGary,” or the myriad of attorneys flooding the airwaves withcommercials telling us we are never at fault, regardless of howguilty or irresponsible we may be. Customers need to beinformed, but in order to do so, those informing must be wellapprised of the laws and have the ability to explain them in wordsthat the average person will understand. “Sir, the law inCalifornia provides that each party is responsible for theirpercentage of fault. I understand that you had the right ofway, but our insured had crossed 80 percent of theintersection when you struck the rear corner of hiscar. Based upon the points of impact and the insured controlof the intersection, we are assessing a percentage of faultagainst you.”
4. Don't rationalize overpaying claims out of fear oflitigation. When a claimant threatens to obtainlegal counsel, he or she will quite possibly retain anattorney whether you appease that person or not. Thedifference is that paying 100 percent upfront just made thejob of getting an accurate bodily injury (BI) settlement muchmore challenging for the injury adjuster. That said, there aretimes when candid discussions can take place early on and perhapsachieving a mutually satisfactory settlement includes compensationfor inconvenience, such as a BI cashout, in exchange for a fullrelease of all claims.
5. Improving negotiation skills is the key toeffectively resolving claims disputes. It is incumbent uponthe adjuster to develop a framework for their negotiation strategy,understanding key arguments while anticipating those of theclaimant or attorney. Like many aspects of claims, negotiationis a skill that must be consistently honed in order to be highlyeffective. As claims leaders, it is incumbent upon is toprovide adjusters with the training, knowledge, and tools to becomehighly effective negotiators.
6. Improve arbitration skills as a percentage ofclaims where comparative negligence is assessed will be handled bythe claimant carrier, who will in turn assert subrogation rights.In some cases, negotiation simply isn't enough to sway the otherparty. The key to success when arbitration ensues is to haveskilled negotiators who can write compelling contentions andresponses that will sway impartial arbiters. Nothing losesarbitration faster than a busy adjuster rushing their response oreven worse, simply failing to respond. Recognizing thischallenge, some of the most effective organizations haveconsolidated the subrogation and arbitration response process withstaffing neutral, centralized workgroups that excel in what theydo, thus freeing up adjusters to be more productive on front-endclaims handling.
7. Calibrating the organization from top tobottom so as to recognize where individuals or groups may bechallenged in fundamental liability knowledge. Not everyperson has the innate ability to recognize and theorizeliability. By facilitating sessions to benchmark,organizations can isolate opportunities much faster to mosteffectively implement process improvement and qualityassurance.
8. Don't reinvent the wheel, as there are otherswho have overcome very similar obstacles. In my own claimsorganization, we struggled with inconsistency and some taking thepath of least resistance. By leveraging proven solutions, inour case Mitchell International's ClaimIQ, we were able toexponentially improve our comparative negligence assessments with aquantifiable bottom line impact.
9. Recognize that tools alone won't get the jobdone. Much like building a house, tools are requiredbut the final product also requires a foundation andframework. Rather it is the combination of the right tools,the right leadership and the right people in the right seats thatultimately get the job done.
10. Never underestimate the power of measuringsuccess. Simply saying “I want to double comparativenegligence results” isn't enough. It requires an action planwith an all of the above approach to gain a competitiveadvantage. It is important to not only measure improvement,but we wary of potential unintended consequences. Consider onemeasurement such as increased subrogation referrals, a naturalbyproduct of increased comparative negligence recognition. What ifsubrogation referrals closed with no recovery suddenly spike? This may be indicative of bad adjuster behavior. By havingboth measures and counter measures it becomes possible to focus onboth good and bad behaviors, again providing the ability to quicklyisolate and remedy problems.

As discussed in Blocking & Tackling: ThePlaybook for the Winning Claims Organization, the secretto success is often rooted in fundamentals. Consider why the“go to” play in football is running between the tackles. Itcertainly isn't glamorous and usually doesn't result in a long runfor a touchdown, but it works. If a team is able to gain 3.5yards on a consistent basis, then they will routinely getfirst downs. This enables them to control the clock,limit the possession of opponents and win more games. Just aschampionship caliber teams are built upon the execution offundamentals, so too are world class claimsorganizations.

Christopher Tidball is a claims consultant, author andspeaker. He is a claims veteran specializing in facilitatingorganizational improvement. To learn more, please visitwww.christidball.com.